Herbert Industrial Insulation Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 602 (N.L.R.B. 1993)

602
312 NLRB No. 105
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In his discussion of the information that the Respondent supplied
to the Union in response to the Union’s request, the judge inadvert-
ently stated that the Respondent’s chairman, John Biemiller, supplied
certain information in an affidavit to the Regional Office on January
29, 1992. (The Respondent gave the Union a copy of the affidavit.)
Although Biemiller did provide a January 29 affidavit, the informa-
tion referred to by the judge was actually included in a February 14,
1992 affidavit.
In his recommended Order, the judge required the Respondent to
furnish to the Union information regarding the Respondent and
‘‘Brown’s Race Insulation Services.’’ In some communications,
however, ‘‘Brown’s Race’’ is variously referred to as ‘‘Brown’s
Race Insulation Corp.,’’ ‘‘Brown’s Race Insulation Services, Inc.,’’
or ‘‘Brown’s Race Insulation Services.’’ In order to avoid any con-
fusion, we have modified the judge’s recommended Order and notice
to refer to ‘‘Brown’s Race’’ with the understanding that the entity
generally referred to as ‘‘Brown’s Race’’ encompasses any entity
mentioned in the record or communications that has ‘‘Brown’s
Race’’ as part of its name.
2 Member Raudabaugh agrees with his colleagues, for the reasons
set forth by the judge, that the Respondent unlawfully failed and re-
fused to provide the Union with relevant requested information, or
was dilatory in doing so. He notes that the Respondent does not con-
test the proposition that all of the requested information is relevant
to the question of whether Brown’s Race is a single employer or
alter ego of the Respondent. Phrased differently, Respondent does
not argue that some of the information would be relevant only if and
when single employer or alter ego status is shown. Thus, there is
no need for Member Raudabaugh to follow the analytical approach
that he took in Arch of West Virginia, 304 NLRB 1089 fn. 1 (1991).
Hebert Industrial Insulation Corporation and The
International Association of Heat and Frost
Insulators and Asbestos Workers Local No. 26,
AFL–CIO. Case 3–CA–16797
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 17, 1993, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the Charging Party filed cross-exceptions. The General
Counsel and the Charging Party each filed an answer-
ing brief to the Respondent’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions2 and to adopt the rec-
ommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Hebert
Industrial Insulation Corporation, Rochester, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Refusing to bargain collectively with the Inter-
national Association of Heat and Frost Insulators and
Asbestos Workers Local No. 26, AFL–CIO (the
Union) by unduly delaying in furnishing responses to
the Union’s requests for information as to the possible
single employer/alter ego status of the Respondent and
Brown’s Race and by failing to furnish all data the
Union sought.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with the
International Association of Heat and Frost Insulators
and Asbestos Workers Local No. 26, AFL–CIO (the
Union) by unduly delaying in furnishing responses to
its requests for information as to the possible single
employer/alter ego status of Brown’s Race and Hebert
Industrial Insulation Corporation and by failing to fur-
nish all data sought thereon.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL promptly furnish the Union with all the
data it requested as to any relationship we have with
Brown’s Race.
HEBERT INDUSTRIAL INSULATION COR-
PORATION
Mary Thomas Scott, Esq., for the General Counsel.
Carl R. Krause, Esq. (Harris, Beach, Wilcox, Rubin & Levy),
of Rochester, New York, for the Respondent.
James R. LaVaute, Esq. (Blitman & King), of Rochester,
New York, for the Charging Party.
Andrea M. Basile Terrillion, Esq., on the brief.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that Hebert Industrial Insulation Corp. (the Re-
spondent), in violation of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act), failed to respond fully
to a request by the International Association of Heat and
Frost Insulators and Asbestos Workers Local No. 26, AFL–
CIO (the Union) for information as to its relationship with
another employer. The complaint further alleges that the
Union needed the requested data in order to perform its du-
ties as the exclusive collective-bargaining representative of
603HEBERT INDUSTRIAL INSULATION CORP.
the employees of the Respondent. The complaint also alleges
that the Respondent unduly delayed in furnishing the re-
quested data. The Respondent’s answer sets forth three de-
fenses, that it complied with the Union’s request, that the
Union did not need the data requested in order to fulfill its
obligations as bargaining representative, and that the Union
had no reasonable grounds to make its request. The informa-
tion which the Union requested concerns the relationship of
the Respondent to a nonunion contractor, Browns-Race Insu-
lation Corp. (Browns-Race).
I heard this case in Rochester, New York, on October 27,
1992. On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel, the Union, and the Re-
spondent, I make the following
FINDINGS OF FACT
The Respondent installs insulation in commercial build-
ings. In its operations annually, it meets the Board’s nonretail
standard for asserting jurisdiction. The Union is a labor orga-
nization as defined in the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Union has a collective-bargaining agreement with the
Respondent which covers employees who install insulation
materials on pipes, fittings, boilers, and related equipment.
William Urquhart, the Union’s business manager, received a
telephone call in September 1991 from an individual em-
ployed by Frontier Insulation Company (Frontier) who in-
formed him that Browns-Race occupied the same building
where the Respondent is located and that, based on his
checking with suppliers, he believed that Brown-Race was
the alter ego of the Respondent. Frontier, at the time, had a
collective-bargaining agreement with the Union.
Urquhart also heard from a representative of Griffen Insu-
lation Company, another insulation contractor which has a
collective-bargaining agreement with the Union. That indi-
vidual told Urquhart that Browns-Race’s president, Jim
Reisenberger, was driving, on an every day basis, a truck
owned by the Respondent. Urquhart also heard from a mem-
ber of the Union that an individual he had met told him that
he was working on a jobsite in Rochester for Browns-Race,
installing insulation material, i.e., doing work covered by the
collective-bargaining agreements between the Respondent
and the Union.
On November 11, 1991, the Union wrote the Respondent,
stating that it learned that the Respondent has an ownership
interest or a relationship with Brown-Race and that Browns-
Race may be doing bargaining unit work. The Union further
stated therein that the Respondent may be violating its bar-
gaining obligation to the Union by reason of Brown-Race’s
nonunion operations. The Union’s letter then sought the fol-
lowing data:
1. Identify the officers of (the Respondent) and the
officer of Browns-Race, since 1975.
2. Identify the shareholders of (the Respondent) and
of Brown Race and the percentage ownership interest of
each shareholder, since 1975.
3. Identify any persons formerly employed by (the
Respondent) who have been or are now employed by
Browns Race; and identify the capacity of their employ-
ment for each entity and the time periods of such em-
ployment, as well as the location of such employment.
4. Set forth when Browns-Race was formed and if
it is a corporation when incorporated, and identify the
work [i.e., by job or project, and by beginning and end-
ing dates] that has been performed by Browns-Race
within the jurisdiction that would be covered by the
collective bargaining agreement between this Local and
(the Respondent).
5. Identify for each of the jobs or projects, the num-
ber of employees utilized by Browns-Race in the per-
formance of work that is of the same type as that cov-
ered by the collective bargaining agreement. For each
employee, identify the length and hours of employment.
6. Identify any equipment owned by either (the Re-
spondent) and/or Browns-Race which is leased to or
utilized by the other, and specify the jobs or projects
on which that occurred. Set forth the financial arrange-
ment, if any, governing such use of equipment, and
state whether the arrangement is in writing.
7. Identify jobs which have been bid by Brown-Race
and state with respect to each such job whether or no
(the Respondent) also bid the job.
8. Identify any work that has been let from one cor-
poration to another.
9. Identify any work performed by one of the com-
panies and which was estimated or bid by the other.
10. With respect to any job or project performed by
(the Respondent), state whether or not Browns-Race
performed work or was present at the same job.
11. State whether any employees or any personnel
affiliated with either company are sometimes employed
by the other company or receive renumeration from the
other company, and if so, describe the circumstances
under which that has occurred or occurs.
12. State the business location(s) (by number and
street and mailing address) of each company since the
incorporation of Browns-Race. Identify the time period
and terms by which either company provided office
space or office services to or for the other.
13. State the business phone numbers of (the Re-
spondent) and Browns-Race since Browns-Race’s incor-
poration.
14. Identify amount(s) involved, reason(s) for and
date(s) of transfer of any funds between (the Respond-
ent) and Browns-Race or the principals of the compa-
nies.
15. Identify amount(s) and amount(s) of the line(s)
of credit, past or present, of each company.
16. Identify amount(s) involved, dates, and where ap-
plicable, project, when either company has operated its
capital with a guarantee of performance by the other
company or its principal(s).
17. Identify each company’s present or past building
or office materials suppliers.
18. Identify businesses that use or have used the
tools or equipment of each company.
19. Identify those of the following services that are
or have been provided to either company by or at the
other company, setting forth dates and identity of per-
sons providing such services; administrative, book-
keeping, clerical, detailing, drafting, engineering, esti-
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Subsequently, the Respondent informed the Union that Steven
Martin’s name was included in error and that he has no interest in
the Respondent.
mating, bidding, managerial, negotiating jobs, pattern-
making, sketching, and any other services (describe).
20. Identify customers referred by either company or
its principals) to other.
21. Identify any customers past or present of either
company who have been or are now customers of the
other company. In each such case, state the calendar pe-
riod and dollar volume of business performed for the
customer.
22. For each company, identify the Directors, since
1975.
The Union wrote the Respondent in that letter that it must
have the answers in writing in 1 week. It received no such
reply. Instead, an attorney wrote the Union on November 21
stating that he represents Browns-Race and that the Respond-
ent has sent the Union’s letter of November 11 to Browns-
Race. The Browns-Race attorney wrote also that, although
Browns-Race has no obligation to cooperate with the Union,
it would disclose to the Union, in return for a written pledge
of confidentiality, certain data requested but not those items
pertaining to confidential and proprietary information, such
as the number of shares held by shareholders, the jobs bid
on or performed by Browns-Race, Browns-Race’s financing
arrangements or the names of its suppliers. He further as-
sured the Union that Browns-Race and the Respondent had
different officers, directors, shareholders, attorneys, account-
ants, customers, offices, equipment, and employees.
On November 25, 1991, the Union wrote Browns-Race for
clarification. On November 27, Browns-Race’s counsel re-
plied that it would furnish information it had already made
public via filings of bids and other documents and, on a
pledge of confidentiality, it would furnish several other par-
ticulars. The Union then wrote Browns-Race that it had to
reserve the right to disclose, to governmental agencies or the
courts, any data it received pursuant to its request. The
record discloses no further correspondence between Browns-
Race and the Union.
On November 25, 1991, the Union wrote the Respondent
asking for a direct response to its November 11 letter. By
letter of December 2, the Respondent informed the Union
that it will not answer some of the demands ‘‘as they get
into some competitive issues.’’ It did furnish data concerning
itself, but none as to Browns-Race. Thus, it answered the
items, as numbered in the Union’s requests, as follows:
1. J.B. Biemiller, Chairman; Lee D’Amico, Presi-
dent.
2. The Shareholders are the Officers.
6. A truck is rented to Brown’s Race, from time to
time, under a written rental agreement.
8. and 10. None
11. The Office Manager of Hebert Construction does
work for Brown’s Race. The arrangement is between
she and Brown’s Race and the two Companies are not
involved.
12. The Hebert Companies have been 192 Mill St.
for some months.
13. Hebert Companies 263-3410.
16., 19., 20., None
22. See #2.
On January 6, 1992, the Union filed the unfair labor prac-
tice charge in this case to protest the Respondent’s not fur-
nishing the requested data. On January 29, the Respondent’s
counsel wrote the Union, enclosing a copy of the affidavit
of John Biemiller, the Respondent’s chairman, that was sent
to the Board’s Regional Office in answering the charge. That
affidavit contained the following answers to the Union’s re-
quest for data:
1. The officers of the Respondent are John Biemiller
and Lee D’Amico. (It has) no other officers.
2. The officers of Browns-Race are James
Reisenberg, John Biemiller and Lee D’Amico.
3. The shareholders of the (Respondent) had been
disclosed earlier, the shareholders of Browns-Race are
John Biemiller, Lee D’Amico, Steven Martin,1 James
Reisenberg and John Owens. No shareholder has a ma-
jority interest in Browns-Race. One of the shareholders
in (Respondent) owns a majority share, however, for
the purposes of these disclosures the percentages of
each shareholders holding is not in my opinion relevant.
4. After a search of the records of (the Respondent)
and Browns-Race it was discovered that Joseph Bertini
was employed by (the Respondent) from 12/30/90 to
9/1/91, as a member of Local 202. He apparently went
to work for Browns-Race in November 1991 in what
capacity your affiant does not know. I do know where
Bertini is employed at this time. During his employ-
ment with the (Respondent) he was not employed as an
insulation worker, but as a Carpenter. (The Respondent)
paid Bertini wages at the Local 26 wage rates. How-
ever, Bertini was never a member of Local 26 while
employed by the (Respondent).
The same record check disclosed that Jody D’Amico
who is Lee D’Amico’s son worked as a driver and
warehouseman for the (Respondent) for 50.5 [hours]
between 8/11/91 to 9/1/91. Jody D’Amico has never
been a member of Local 26 or Local 202. Jody has
worked for Browns-Race part-time for a while and full-
time beginning in September, 1991 and is no longer
employed by Browns-Race. These are the only common
employees that my search has turned up except as al-
ready noted.
5. Your affiant knows of no work that has ever been
let from one of the (Respondent) to Browns-Race or
vise [sic] versa.
6. The (Respondent) and Browns-Race estimate their
own work. Neither estimates any work for the other.
7. The (Respondent) and Browns-Race have never
performed any work for the other nor have they been
present on a job being done by the other.
8. Except as already stated no employee, Officer of
Director of (the Respondent) receives or has received
any renumerations or benefits from Browns-Race, or
vice versa, nor are any of them employed by the other.
9. (The Respondent) loaned Browns-Race $7,000.00
in December, 1991 for the use of Browns-Race in any
fashion it chooses, in consideration it received a note
with interest at the rate of 7.5% said note is callable on
605HEBERT INDUSTRIAL INSULATION CORP.
demand. John Biemiller personally loaned Browns-Race
$6,000.00 in October, 1991 to be used for any purpose
it chooses, and in consideration he received a note with
interest at the rate of 7.5% said not is callable on de-
mand, and has been paid down to $4,000.00 as of this
writing.
10. As noted in my earlier affidavit the (Respondent
has) a line of credit, the amount of which is not rel-
evant. To the best of your affiants knowledge Browns-
Race has no line of credit.
11. The (Respondent purchases) materials and sup-
plies from independent third parties who bill (the Re-
spondent) for their purchases. Neither your affiant nor
any other person employed by the (Respondent) knows
who Browns-Race suppliers are, but the (Respondent
does) not and have never paid a bill for any materials,
supplies or any other thing of value received by Browns
Race.
12. The principals of the (Respondent) or their em-
ployees have not referred customers to Browns-Race or
vice versa.
13. The Directors of (Respondent) are John Biemiller
and Lee D’Amico. The Directors of Browns-Race are
the persons identified as its shareholders.
On August 18, 1992, the Respondent furnished the Union
with a copy of another affidavit of its chairman, which con-
tained the following data:
1. Identify the officers of (the Respondent) and the offi-
cers of Brown’s Race, since 1976.
Response: The officers of (the Respondent) are John
Biemiller and Lee D’Amico. The officers of Browns-
Race are James Reisenberg, John Biemiller and Lee
D’Amico.
2. Identify the shareholders (the Respondent) and
Browns-Race and the percentage ownership interest of
each shareholder, since 1975.
Response: The shareholders of (the Respondent) are
John Biemiller and Lee D’Amico. Biemiller has a
51% ownership interest in (the Respondent) and
D’Amico has a 49% ownership interest in Hebert.
The shareholders of Browns-Race are John Biemiller,
Lee D’Amico, Stephen P. Martins, James Reisenberg
and John Owens. Biemiller and D’Amico each have
a 35% ownership interest in Browns-Race. Martins,
Reisenberg and Owens each have a 10% ownership
interest in Browns-Race.
3. Identify any persons formerly employed by (the Re-
spondent) who have been or are now employed by
Browns-Race and identify the capacity of their employ-
ment for each entity and the time periods of such em-
ployment, as well as the location of such employment.
Response: Joseph Bertini was employed by (the Re-
spondent) from 12/30/90 top 7/1/91 as a member of
Local 26. From August 30, 1991 until September 1,
1991 Bertini was employed by (the Respondent) as
a member of Local 2020. Bertini’s last full week of
employment at (the Respondent) ended August 11,
1991. During two subsequent pay periods (the pay
periods ending August 25 and September 1, 1991)
Bertini worked for (the Respondent) sixteen (16) and
twelve (12) hours, respectively. Bertini was paid
Local 26 wage rates but he was never a member of
Local 26 while employed by (the Respondent).
On August 12, 1991, Bertini became employed by
Browns-Race. During the three-week period Bertini was
on the payrolls of both (the Respondent) and Browns-
Race, he was employed by the Respondent as a car-
penter (work not covered under the agreement between
the ((Respondent) and the Union), not as an insulation
worker.
Jody D’Amico, son of Lee D’Amico, worked as a
driver and warehouseman for the (Respondent) for 50.5
hours between 8/11/91 to 9/1/91. Jody D’Amico has
never been a member of Local 26 or Local 202.
Jody D’Amico has worked for Browns-Race on both
a part-time and full-time basis, beginning September,
1991. At the time my affidavit in response to the
Union’s request for information was executed on Feb-
ruary 13, 1992, Jody D’Amico was no longer employed
by Browns-Race. At the present time, however, he has
resumed his employment with Browns-Race.
Also, Sheila Montgomery, the officer manager of the
(Respondent), works part-time for Browns-Race in an
independent arrangement with Browns-Race.
4. Set forth when Browns-Race was formed and if it is
a corporation when, it incorporated, and identify the
work [i.e, by job or project, and by beginning and end-
ing dates] that has been performed by Browns-Race
within the jurisdiction that would be covered by the
Collective Bargaining Agreement between Local 26 and
(the Respondent).
Response: Browns-Race was incorporated on August
15, 1991. All work Browns-Race performs is gen-
erally the type of work which falls within the juris-
diction of the Collective Bargaining Agreement.
5. Identify for each of the jobs or projects, the number
of employees utilized by Browns-Race in the perform-
ance of work that is of the same type as that covered
by the Collective Bargaining Agreement. For each em-
ployee, identify the length and hours of employment.
Response: As stated previously, the nature of the
work performed by Browns-Race generally within
the jurisdiction of the work performed by Hebert In-
dustrial. Your dependent does not know length and
hours of employment for each employee employed
by Browns-Race on these types of projects.
6. Identify any equipment owned by either (the Re-
spondent) and/or Browns-Race which is leased to or
utilized by the other, and specify the jobs or projects
in which that occurred. Set forth the financial arrange-
ment, if any, governing such use of equipment, and
state whether the arrangement is in writing.
Response: Browns-Race has, from time to time,
rented a truck from (the Respondent) for which
Browns-Race was billed by the hour in an arms-
length transaction. This is the only equipment trans-
action that has ever occurred between the companies.
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
From September, 1991 through December, 1991,
Browns-Race leased this truck from (the Respondent)
for 125 hours, for a total expense of $781.25. From
January through March, 1992 Browns-Race leased this
truck from (the Respondent) for a total of 48.5 hours
and $303.13 in lease fees. The leasing of this truck to
Browns-Race by (the Respondent) is governed by an
agreement between the parties, dated September 3,
1991. This agreement was cancelled as of July 27,
1992.
Your deponent does not know the particular jobs or
projects on which this truck was used by Browns-Race.
7. Identify which have been bid by Browns-Race and
state with respect to each such job whether or not (the
Respondent) also bid the jobs.
Response: Your deponent does not know those jobs
which have been bid by Browns-Race.
8. Identify any work that has been let from one cor-
poration to another.
Response: No work that has ever been let from either
one of (the Respondent) to Browns-Race or vice
versa.
9. Identify any work performed by one of the compa-
nies which was estimated or bid by the other.
Response: The (Respondent) and Browns-Race esti-
mate their own work and neither estimates any work
for the other.
10. With respect to any job or project performed by
(the Respondent), state whether or not Browns-Race
performed work or was present at the same job.
Response: The (Respondent) and Browns-Race have
never performed any work for the other at the same
job site. They have never been present on a job
being performed by the other, and they have never
performed any work for the other regardless of job
site.
11. State whether any employees or any personnel af-
filiated with either company are sometimes employed
by the other company or receive remuneration from the
other company, and if so, describe the circumstances
under which that occurred or occurs.
Response: Jospeh Bertini and Jody D’Amico pre-
viously have been identified as individuals who were
at one time employed by the (Respondent) who have
been employed by Browns-Race. (See Response to
Inquiry No. 3.) Also, the (Respondent) office man-
ager, Sheila Montgomery, currently provides book-
keeping services for Browns-Race, but she works
part-time for Browns-Race in an independent ar-
rangement. In working for Browns-Race, the office
manager works at her pleasure and then bills Browns
Race for work performed on its behalf.
12. State the business location(s) (by number and street
mailing address) of each company since the incorpora-
tion of Browns-Race. Identify the time period and terms
by which either company provided office space or of-
fice services to or for the other.
Response: Browns-Race is located at 192 Mill Street,
Rochester, New York 14614. The (Respondent is) lo-
cated at 192 Mill Street, Rochester, New York
14614. The (Respondent) and Browns-Race are lo-
cated in the same building but each has a separate
address and entrance. The (Respondent) and Browns-
Race do not share space. The building in which the
(Respondent) and Browns-Race are located is owned
by a third party who has no interest in any of the
three corporations. Biemiller and D’Amico, in their
individual capacities, rent this building from the
owner. Biemiller and D’Amico, in their individual
capacities, then sublease space to Browns-race pursu-
ant to a separate, written agreement.
13. State the business phones numbers of (the Respond-
ent) and Browns-Race since Browns-Race’s incorpora-
tion.
Response: The (Respondent) and Browns-Race have
different phone numbers and listings in the Yellow
Pages. The telephone number for Browns-Race is
(716) 263-6990. The telephone number for (the Re-
spondent) is (716) 263-3410.
14. Identify amount(s) involved, reason(s) for, and
date(s) of transfer of any funds between (the Respond-
ent) and Browns-Race for the principals for the compa-
nies.
Response: In December, 1991, (the Respondent)
loaned Browns-Race $7,000.00 for its use in any
fashion it chose. Since the February 13, 1992 affida-
vit was submitted in response to the Union’s request
for information, (the Respondent) has loaned
Browns-Race an additional $18,300. In consideration
for these loans, (the Respondent) has received a note
with interest at the rate of 7.5%. These loans are
callable upon demand.
John Biemiller personally loaned Browns-Race
$6,000.00 in October 1991 to be used by Browns-Race
for any purpose it chose. In consideration, Biemiller re-
ceived a note with interest at the rate of 7.5%. The note
is callable upon demand and has been paid down to
$3,270.00 as of August 12, 1992.
15. Identify amount(s) and amount(s) of the lines(s) of
credit, past or present, of each company.
Response: Although the (Respondent does) have a
line of credit, the amount of that line of credit is not
relevant to this proceeding. To your deponent’s
knowledge, Browns-Race has no line of credit.
16. Identify amount(s) involved, dates and where appli-
cable, project, when either company has operated its
capital with a guarantee of performance by the other
company or its principals(s).
Response: Neither the (Respondent) nor Browns-
Race has ever guaranteed the performance of the
other.
17. Identify each company’s present or past building or
office materials suppliers.
Response: The (Respondent purchases) materials and
supplies from independent third parties who bill (the
607HEBERT INDUSTRIAL INSULATION CORP.
Respondent) for their purchases. The (Respondent)
have not or nor have they ever paid a bill for mate-
rials, supplies or any other thing of value received by
Browns-Race.
The names of (the Respondent’s) suppliers are: Insu-
lation Distributors, Tru Temp Industrial Insulations
Company, Inc. and Frontier Insulation Contractors, Inc.
These suppliers furnish (the Respondent) with insula-
tion materials. Your deponent has no knowledge of the
suppliers of Browns-Race, but assumes that (the Re-
spondent) and Browns-Race may have some common
suppliers, because there are a limited number of insula-
tion suppliers in this area.
Office supplies used by (the Respondent) are sup-
plied by OFFICEMAX. Your deponent does not know
who supplies office materials to Browns-Race.
18. Identify businesses that use or have used the tools
or equipment of each company.
Response: The (Respondent has) not published any
services, space or tools to Browns-Race, except for
the truck previously indicated herein. The (Respond-
ent has) not leased or allowed any other companies
to use or lease their tools or equipment. The (Re-
spondent has) not used or leased the tools or equip-
ment of Browns-Race. Your deponent does not know
whether Browns-Race has allowed other companies
to use or lease its tools and equipment.
19. Identity those of the following services that are or
have been provided to either company by or at the
other company, setting forth dates and identity or per-
sons providing such services: administrative book-
keeping, clerical, detailing, drafting, engineering, esti-
mating, bidding, managerial, negotiation jobs, pattern-
making, sketching, and any other services (describe).
Response: Sheila Montgomery, office manager of the
(Respondent) is employed by Browns-Race on part-
time basis in an independent arrangement with
Browns-Race. On occasion, Montgomery has per-
formed bookkeeping work for Browns-Race at the
location of the (Respondent), but not on the (Re-
spondent’s) time.
20. Identify customers referred by either company or it
principal’s to the other.
Response: Neither the principals of the (Respondent)
nor their employees have been referred Browns-Race
or vice versa.
21. Identify any customers past or present of either
company who have been or are now customers of the
other company. In each such case, state the calendar pe-
riod and dollar volume of business performed for the
customer.
Response: Those customers of (the Respondent) who
may have been or may now be customers of Browns-
Race are:
1. Dineen Mechanical Contractors, Inc.
2. Eastman Kodak Co.
3. E. & S. Systems, Inc.
4. Frey and Campbell, Inc.
5. Schlegel Corp.
6. J.P. Bell, Inc.
7. J.T. Mauro Company, Inc.
8. Postler & Jaeckle Corp.
Your deponent or the principals of the (Respondent) do
not know the calendar period or dollar amount of busi-
ness performed for these customers of if they actually
are customers of Browns-Race and has in fact carefully
avoided obtaining knowledge of information regarding
the customers, dollar volumes, or jobs of Browns-Race.
22. For each company, identify the Directors, since
1975.
Response: The directors of (the Respondent) are
John Biemiller and Lee D’Amico. The directors of
Browns-Race are James Reisenberg, John Biemiller
and Lee D’Amico.
On September 30, 1992, the Union wrote the Respondent
that it has still ‘‘failed to provide at any time the (names of
the) officers of (the Respondent) and Browns-Race for times
other than the present; time period and location that Sheila
Montgomery, worked for Browns-Race (including specific
times during the Respondents work hours when this has oc-
curred; and the particular jobs or projects performed by
Browns-Race, employee information regarding those jobs,
and jobs on which there was use of equipment owned by one
company or the other; jobs bid by Browns-Race; work per-
formed by one company which was estimated or bid by the
other; whether Browns-Race at any time performed work or
was present at a job or project performed by (the Respond-
ent); arrangements by which (the Respondent) rents space;
the suppliers of Browns-Race; and the customers of (the Re-
spondent) who have been or are now customers of Browns-
Race, with calendar period and dollar volume of business.’’
By letter dated October 8, 1992, the Respondent replied,
stating that it disputed the assertions that it had not provided
certain particulars sought—e.g., the names of officers at
times other than the present. It stated that the names it gave
as officers are those of the individuals who always have been
the officers. The Respondent acknowledged that it has not
furnished the following information as to Browns-Race’s op-
erations: (1) the particular jobs or projects performed by
Browns-Race, (2) employee information regarding those jobs,
(3) jobs bid by Browns-Race, (4) the suppliers of Browns-
Race, and (5) the customers of Hebert who are or who have
been customers of Browns-Race, with dollar volume busi-
ness. It asserted that these items are not presumptively nec-
essary and relevant to the Union’s representative status. It
further stated that the Union’s demand, in effect, that its
chairman, Biemiller, obtain that data from Browns-Race is
unreasonable as Biemiller’s affidavit recites that he does not
have knowledge of Browns-Race’s operations. That letter
was the last communication between the Respondent and the
Union on the matter of the Union’s request for data.
The Respondent conceded that its chairman, Biemiller,
could obtain the requested data from Browns-Race but re-
frained from doing so based on legal advice it received; the
Respondent was advised that if Biemiller acted to secure the
data from Browns-Race, the Union thereby would be able to
use his actions as evidence that Browns-Race is the alter ego
of the Respondent.
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Analysis
The following excerpt from Judge Barban’s decision,
adopted by the Board, in Walter N. Yoder & Sons, 270
NLRB 652 (1984), sets out the principles governing this
case:
It is well settled under Section 8(a)(5) of the Act a
union which has the responsibility of representing em-
ployees for the purposes of collective bargaining is en-
titled to request and obtain information from the em-
ployer if there is a probability that such data is relevant
and will be of use to the union in fulfilling its statutory
duties and responsibilities in representing such employ-
ees. In particular, where the employer, party to a collec-
tive-bargaining agreement, appears to be conducting a
nonunion ‘‘double breasted’’ operation, the union party
to that agreement is entitled to information from the
employer as to the nature of and relationship between
the two operations which may reasonably be relevant
and useful to the union representing the employees in
negotiating or administering and enforcing the collec-
tive-bargaining agreement. See., e.g., Associated Gen-
eral Contractors of California, 242 NLRB 891 (1979);
Leonard B. Hebert, Jr. & Co., 259 NLRB 881 (1981):
Doubarn Sheet Metal, Inc., 243 NLRB 821 (1979).
The General Counsel has the burden of establishing that
the Union has a reasonable, objective basis to believe that
the Respondent may be engaging in doublebreasting. M.
Scher & Sons, 286 NLRB 688 (1987).
The reports received by the Union’s business manager
from members of the Union and from competitors of the Re-
spondent respecting the use by Browns-Race of Respondents
trucks, the physical proximity of Browns-Race’s office to
that of the Respondent, and the nature of the unit work re-
portedly being done by employees of Browns-Race, warrant
a finding that the Union had a reasonable objective basis to
be concerned that the Respondent may indeed be evading its
contractual obligation to the Union by diverting unit work to,
apparently, it own creation, i.e.—Browns-Race. The fact that
the Union acted on reports it received, and not on direct ob-
servations of its business manager does not compel a conclu-
sion that the Union did not have a reasonable basis to in-
quire. To characterize these reports as ‘‘hearsay’’ misses the
point. Testimony as to those reports was not offered to estab-
lish the truth thereof but only that they were received and
acted on by the Union. By definition, under the Federal
Rules of Evidence, such testimony is not hearsay.
The Respondent contends that the Board’s prohibitions
against discovery in Board cases applies here as the Union
was endeavoring to receive evidence to enable it to file an
unfair labor practice charge alleging that Browns-Race is the
alter ego of the Respondent. If there is any merit in that con-
tention, it showed it addressed to the Board; I am bound, re-
specting the issues before me to follow the clear Board
precedent set out in the cases discussed above and also in
Arch of West Virginia, 304 NLRB 1089 (1991); Westing-
house Electric Corp., 304 NLRB 703 (1991); Jarvis B. Webb
Co., 302 NLRB 316 (1991); Rochester Acoustical Corp., 298
NLRB 558 (1986).
Respondent asserts a fear that, had its chairman secured
the requested data from Browns-Race, it would thereby have
indicated, contrary to Biemiller’s view, that Browns-Race is
its alter ego. Biemiller’s affidavits, however, disclose that
data be furnished was in fact obtained via searches of
Browns-Race’s records. In any event, the Respondent’s as-
serted fear is no basis to disregard its clear obligation as
spelled out in the cases cited above.
The Respondent has furnished the Union, in a piecemeal
fashion, with most of the data requested. It did, however,
delay unduly in furnishing most of that data. In delaying, it
has failed to meet its obligation to furnish promptly the in-
formation sought. See Electrical Energy Services, 288 NLRB
925, 932 (1988). Further, it has withheld obtaining and fur-
nishing the Union with information requested, including the
customers, suppliers, and employees of Browns-Race.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. By delaying unduly in furnishing certain data properly
requested by the Union and by failing to furnish the remain-
der of the data sought, the Respondent has failed to bargain
collectively with the Union and thereby has engaged in an
unfair labor practice within the meaning of Section 8(a)(5)
of the Act.
4. This unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
On the foregoing findings of fact and conclusions of law
and on the entire record, I issue the following recommended2
ORDER
The Respondent, Hebert Industrial Insulation Corp., Roch-
ester, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargaining collectively with International
Association of Heat and Frost Insulators and Asbestos Work-
ers Local No. 26, AFL–CIO (the Union) by unduly delaying
in furnishing responses to its requests for information as to
possible double-breasted operations by Browns-Race Insula-
tion Services (Browns-Race) and by failing to furnish all data
it sought thereon.
(b) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Respond fully in writing within 10 days of receipt of
this Order, to the Union’s request for data as to Brown-
Race’s operations and its relationship with Brown-Race.
(b) Post at its office in Rochester, New York, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
609HEBERT INDUSTRIAL INSULATION CORP.
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
tice, on forms provided by the Regional Director for Region
3, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.